Secrecy

A flood of information from the ongoing proliferation of space-based sensors and ground-based data collection devices is promoting a new era of transparency in at least one corner of the U.S. intelligence community.

The “explosion” of geospatial information “makes geospatial intelligence increasingly transparent because of the huge number and diversity of commercial and open sources of information,” said Robert Cardillo, director of the National Geospatial-Intelligence Agency (NGA), in a speech last month.

Hundreds of small satellites are expected to be launched within the next three years — what Mr. Cardillo called a “darkening of the skies” — and they will provide continuous, commercially available coverage of the entire Earth’s surface.

“The challenges of taking advantage of all of that data are daunting for all of us,” Mr. Cardillo said.

Meanwhile, the emerging “Internet of Things” is “spreading rapidly as more people carry more handheld devices to more places” generating an abundance of geolocation data.

This is, of course, a matter of intelligence interest since “Every local, regional, and global challenge — violent extremism in the Middle East and Africa, Russian aggression, the rise of China, Iranian and North Korean nuclear weapons, cyber security, energy resources, and many more — has geolocation at its heart.”

Consequently, “We must open up GEOINT far more toward the unclassified world,” Director Cardillo said in another speech last week.

“In the past, we have excelled in our closed system. We enjoyed a monopoly on sources and methods. That monopoly has long since ended. Today and in the future, we must thrive and excel in the open.”

So far, NGA has already distinguished itself in the area of disaster relief, Mr. Cardillo said.

“Consider Team NGA’s response to the Ebola crisis. We are the first intelligence agency to create a World Wide Web site with access to our relevant unclassified content. It is open to everyone — no passwords, no closed groups.”

NGA provided “more than a terabyte of up-to-date commercial imagery.”

“You can imagine how important it is for the Liberian government to have accurate maps of the areas hardest hit by the Ebola epidemic as well as the medical and transportation infrastructure to combat the disease,” Mr. Cardillo said.

But there are caveats. Just because information is unclassified does not mean that it is freely available.

“Although 99 percent of all of our Ebola data is unclassified, most of that is restricted by our agreements [with commercial providers],” Mr. Cardillo said. “We are negotiating with many sources to release more data.”

Last week, Director Cardillo announced a new project called GEOINT Pathfinder that will attempt “to answer key intelligence questions using only unclassified data.”

When it comes to transparency, the Office of the Director of National Intelligencerecently expressed the view that the U.S. intelligence community should make “information publicly available in a manner that enhances public understanding of intelligence activities, while continuing to protect information when disclosure would harm national security.”

But some intelligence agencies have chosen a different path.

At the CIA, for example, public access to unclassified translations and analytical products of the Open Source Center was abruptly terminated at the end of 2013. Such materials from the OSC and its predecessor, the Foreign Broadcast Information Service, had provided invaluable support to generations of scholars, students, and foreign policy specialists. But that is no longer the case.

The U.S. Constitution does not explicitly recognize a “public right to know.” But without reliable public access to government information, many features of constitutional government would not make sense. Citizens would not be able to evaluate the performance of their elected officials. Freedom of speech and freedom of the press would be impoverished. Americans’ ability to hold their government accountable for its actions would be neutered.

The conditions that make government accountability possible and meaningful are the subject of the new book Reclaiming Accountability by Heidi Kitrosser (University of Chicago Press, 2015).

The author introduces the term “substantive accountability,” which she contrasts with mere “formal accountability.” While formal accountability includes such things as the right to vote, substantive accountability requires that people must “have multiple opportunities to discover information relevant to their votes….”

This may seem obvious, but the trappings of formal accountability are often unsupported by the information that is needed to provide the substance of accountability, especially in matters of national security.

Kitrosser, a professor of law at the University of Minnesota Law School, shows that the principles of substantive accountability are deeply rooted in the text, structure and history of the Constitution. She uses those principles to provide a framework for evaluating contemporary assertions of presidential power over information, including executive privilege, state secrets, secret law, and prosecutions of unauthorized disclosures.

It cannot be the case, for example, that unauthorized disclosures of classification information are categorically prohibited by law and also that the President has discretion to classify information as he sees fit. If that were so, she explains, then the President would have unbounded authority to criminalize disclosure of information at will, and the classification system would have swallowed the First Amendment. As she writes: “The First Amendment’s promise would be empty indeed if its protections did not extend to information that the president wishes to keep secret.”

Kitrosser reviews the relevant case law to find openings and lines of argument that could be used to bolster the case for substantive accountability. She notes that Supreme Court rulings over the years “contain the seeds of an affirmative case for strongly protecting classified speakers.” In a 1940 ruling in Thornhill v. Alabama, for example, the Court declared that “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.”

There is, of course, an opposing school of thought which posits a largely unconstrained presidential authority over government information. Moreover, this presidentialist view has been on “an upward historical trajectory” in recent decades. Leak investigations and prosecutions have risen markedly, and so have assertions of the state secrets privilege. Secret law blossomed after 9/11. The very term “executive privilege” is a modern formulation that only dates back to 1958 (as noted by Mark Rozell).

One of the deeply satisfying features of Kitrosser’s book (which is a work of scholarship, not a polemic) is her scrupulous and nuanced presentation of the presidential supremacist perspective. Her purpose is not to ridicule its weakest arguments, but to engage its strongest ones. To that end, she traces its origins and development, and its various shades of interpretation. She goes on to explain where and how substantive accountability is incompatible with presidential supremacy, and she argues that the supremacist viewpoint misreads constitutional history and is internally inconsistent.

The book adds analytical rigor and insight to current debates over secrecy and accountability, which it ultimately aims to inspire and inform.

“We can seek to harness and support those aspects of American law, politics, and culture that advance substantive accountability,” she writes.

“Reclaiming accountability is no single act. From internal challenges or external leaks by civil servants, to journalistic inquiries and reports, to congressional oversight, to FOIA requests, accountability is claimed and reclaimed every day by countless actors in myriad ways.”

National security secrecy can be an impediment to veterans who are seeking treatment for traumas suffered during military service yet who are technically prohibited from disclosing classified information related to their experience to uncleared physicians or therapists.

The problem was epitomized by the case of U.S. Army Sgt. Daniel Somers, who participated in classified Special Operations missions in Iraq. He returned with significant physical, mental and psychological damage. He killed himself in June 2013.

Secrecy, among other factors, appears to have exacerbated his condition, according to Rep. Kyrsten Sinema (D-AZ).

“One of the struggles Daniel faced was as an individual who had served in classified service,” Rep. Sinema said at a hearing last July. “He was unable to participate in group therapy because he was not able to share [what] he experienced while in service.”

“The Classified Veterans Access to Care Act ensures that veterans with classified experiences have appropriate access to mental health services from the Department of Veterans Affairs,” she said in a release.

The bill itself would require the Secretary of Veterans Affairs “to ensure that each covered veteran may access mental health care provided by the Secretary in a manner that fully accommodates the obligation of the veteran to not improperly disclose classified information.”

The Classified Veterans Access to Care Act was originally introduced in October 2013 (as HR 3387). But although it had, and has, bipartisan support, it was not acted on in the 113th Congress. Nor are its prospects for passage in the new Congress clear. Still, there is nothing to prevent the Department of Veterans Affairs from addressing the underlying issue, and fixing the problem, without awaiting the formal enactment of Rep. Sinema’s legislation.

“The V.A. welcomes criticism but also needs constructive ideas to succeed,” wrote Drs. Marsden McGuire and Paula Schnurr in a letter to the New York Times last week. “The V.A. is actively engaging community partners, academia, advocates, the private sector and, most important, veterans and their families, to improve services.”

National security secrecy, which remains a source of conflict and consternation, inspires a steady flow of books and journal articles. As in other policy-related fields, much of this literature is tendentious, derivative or dull. Some of it is insightful, original or usefully provocative.

Most works naturally occupy a middle ground including both virtues and defects. Two highly original works on secrecy in recent years — Daniel Patrick Moynihan’s Secrecy: The American Experience and Garry Wills’ Bomb Power — also have significant conceptual flaws and factual errors. That is to say, it is hard to write a good book about secrecy.

With that in mind, here are some notable recent additions to the literature.

This is a study of the impact of laws such as the Freedom of Information Act and the Federal Advisory Committee Act. It presents a survey of how these open government laws were implemented through successive administrations and how they were sometimes circumvented.

“The sunshine laws of the 1970s substantially revised the way information flowed through the American political system,” writes Arnold. “It is hard to deny that the new legal framework placed serious constraints on executive branch officials.”

Nevertheless, “excessive secrecy still reigned in the sunshine era,” he concludes. “All administrations did what they could… to twist around the statutes when they deemed it necessary. All diverged from their own pro-transparency rhetoric and rules.”

This article focuses on the perennial problem of overclassification and proposes a solution. It would seek to alter the incentives that currently favor (over)classification by establishing new incentives to reduce classification.

“Classification should not be a free good,” Lin writes. He defines a classification cost metric that would reflect the relative importance of different classified documents, and that would make it possible to “budget” for classification.

Through the application of appropriate incentives, “Those who actually make decisions about classification should benefit from reductions in the amount of classified information produced.”

The author anticipates several objections to his idea, and offers responses to them.

Sometimes secrecy is not simply an annoying artifact of national security bureaucracy, but is itself a weapon in the struggle for power. The use of secrecy in this way is corrosive and has now become disabling to American democracy, according to author Scott Horton.

While most national security attention is focused on threats from abroad, Horton says “the more serious threats to American democracy are internal. They stem from a steady transfer of democratic decision making and authority away from the people and to unelected elites. This has occurred both with respect to the disproportionate grasp of power by wealthy super elites, and by the rise of national security elites who increasingly take the key decisions about national security matters without involving the people in any meaningfully democratic process.”

“More effectively than before, they use secrecy not only to cover up their past mistakes but also to wrest from the public decisions about the future that properly belong to the people.”

On October 27, 1977, Dr. Gerald F. Ross filed a patent application for a new invention he had devised to defeat the jamming of electromagnetic transmissions at specified frequencies. But it was not until June 17, 2014 — nearly 37 years later — that his patent was finally granted (Anti-jam apparatus for baseband radar systems, patent number 8,754,801).

In the interim, Dr. Ross’s patent application had been subject to a secrecy order under the Invention Secrecy Act of 1951, which both prevented issuance of the patent and prohibited its public disclosure.

At the end of Fiscal Year 2014 (on September 30), there were 5,520 such invention secrecy orders in effect, according to statistics released by the U.S. Patent and Trademark Office under the Freedom of Information Act.

That is the highest number of invention secrecy orders in effect since 1994. It is unclear whether this reflects growing innovation in sensitive technology areas, or a more restrictive approach to disclosure by government agencies.

In fact, the overwhelming majority of current secrecy orders were issued in prior years, but there were 97 new secrecy orders that were imposed in FY 2014. Meanwhile, there were 22 existing orders that were rescinded, including the order concerning Dr. Ross’s invention.

Under the Invention Secrecy Act, secrecy orders may be imposed whenever, in the judgment of an executive branch agency, the disclosure of a patent application would be “detrimental to the national security.” This is a lower, less demanding standard than that for national security classification (which applies to information that could “cause damage to national security”) and not all secret inventions are classified. Some may be unclassified but export controlled, or otherwise restricted.

Other newly disclosed inventions formerly subject to a secrecy order that was rescinded by the government during the past year include these (according to data obtained from the Patent and Trademark Office):

The National Archives and Records Administration told the Central Intelligence Agency last week that it was withholding approval of a CIA proposal to allow the destruction of the email records of all but 22 senior Agency officials.

“NARA intends to reassess the Central Intelligence Agency (CIA) proposal for the disposition of non-senior email accounts,” wrote Paul M. Wester, Jr., Chief Records Officer at NARA in a November 20 letter to Joseph Lambert, Director of Information Management Services at CIA.

“Based on comments from Members of the U.S. Senate Select Committee on Intelligence and a number of public interest groups, we are concerned about the scope of the proposed schedule and the proposed retention periods,” Mr. Wester wrote.

“We will hold a public meeting on this schedule in the coming months to address the comments raise by you and others and to share how NARA is moving forward,” wrote Margaret Hawkins of NARA Records Management Services in an email message today. “This meeting will be announced in the Federal Register and will be open to all commenters and the public.”

The Central Intelligence Agency has asked for authority to destroy email messages sent by non-senior officials of the Agency. The National Archives and Records Administration (NARA) has tentatively approved the proposal.

In an August 18appraisal of the CIA request, Meredith Scheiber of NARA wrote that any permanently valuable material in the emails would almost certainly be captured in other permanent CIA records.

“It is unlikely that permanent records will be found in these email accounts that is not filed in other appropriate files appraised as permanent,” the appraisal said.

“There are multiple records systems to capture the actions and decisions of employees and multiple internal controls in place in the event an employee was engaged in malicious activities.”

Any “remaining email not captured in other recordkeeping systems is routine or administrative in nature; transitory; or personal in nature.”

The NARA appraisal of the CIA proposal noted in passing that “The Agency’s current email policy is to print and file” rather than to save permanently valuable email in softcopy format.

“The average career of an Agency employee is 22 years,” the NARA appraisal also observed.

The CIA proposal for email disposal authority and the accompanying NARA appraisal were announced for public comment in the Federal Register on September 17.

Under the prevailing information policies of the Central Intelligence Agency, even some well-known public facts, such as the price of a popular personal computer, may be withheld from public disclosure.

“We bought our first Commodore Amiga in 1987 for less than [price redacted] including software,” according to a paper entitled “NPIC, Amiga, and Videotape” from the CIA journal Studies in Intelligence. It was among hundreds of papers posted online this month in response to a FOIA lawsuit brought by Jeffrey Scudder.

The redacted Amiga price figure is marked “(b)(3)(c)”, signifying that the information is being withheld under The CIA Act of 1949, by which CIA may withhold information about the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.

But is the cost of a publicly available consumer item like the Commodore Amiga computer properly subject to this exemption? A CIA information management official did not respond to an inquiry on the subject from Secrecy News.

Based on previous official statements, however, the CIA would likely say that even if the cost of the Commodore Amiga in 1987 is not intrinsically sensitive, the fact that CIA expended that amount makes it so.

Moreover, CIA seems to have adopted a declassification rule dictating that all of its expenditures, no matter how trivial, shall be withheld from disclosure, except in extraordinary cases (or the occasional mistake). The Agency might go on to argue that such a rule actually facilitates disclosure by expediting the declassification review process. That’s because instead of needing to pause to consider the potential ramifications of any individual spending disclosure, the Agency can proceed more quickly by simply withholding all such figures.

However, by adopting such sweeping non-disclosure practices, the CIA inevitably withholds more information than it should. And it lacks a reliable mechanism for correcting errors and excesses.

This has been a longstanding problem when it comes to withholding information concerning “intelligence sources and methods,” as authorized and required by the National Security Act [a FOIA exemption designated “(b)(3)(n)” in CIA’s internal notation].

The 1997 Report of the Commission on Protecting and Reducing Government Secrecy (the Moynihan Commission) said that the “sources and methods” justification for secrecy had been invoked too broadly and required clarification.

“Neither the National Security Act nor any of the relevant executive orders has defined what constitutes a ‘source’ or a ‘method,’ and the use of these provisions has been the subject of frequent criticism. Protection of sources and methods has been used to justify the classification of a range of information sometimes only indirectly related to a specific source or method,” the Moynihan Commission said (in Chapter 2 of its Report).

“In practice, the sources and methods rationale [for withholding information] has become a vehicle for agencies to automatically keep information secret without engaging in the type of harm analysis required by executive orders as a prerequisite to keeping other kinds of information secret. The statutory requirement that sources and methods be protected thus appears at times to have been applied not in a thoughtful way but almost by rote,” the Commission said (in Chapter 3).

But no action was taken on the Commission’s critique, and 15 years later the Public Interest Declassification Board still found reason to recommend that “The specific protections afforded intelligence sources and methods need to be precisely defined and distinguished.” So far, the Board’s 2012 recommendation to clarify the parameters of the National Security Act on this point has also gone unheeded.

Meanwhile, based on CIA’s promiscuous use of its withholding authorities as evidenced in the newly posted Studies in Intelligence papers, similar remedial action seems to be required with respect to the CIA Act as well.

And what was the cost of the Commodore Amiga in 1987 that CIA believes is exempt from disclosure today?

According to an online history, the Amiga 500 cost $699 in 1987, while the high end Amiga 2000 (with 1 MB RAM and a monitor) cost $2395.

Update: A CIA official said on October 1 that the redaction of the cost of the Amiga was an error, and that it would be corrected.

Update 2: The paper has been re-posted by CIA with cost figures restored here.

NASA’s orbiting James Webb Space Telescope will be “the premier observatory of the next decade, serving thousands of astronomers worldwide, and studying every phase in the history of our Universe, ranging from the first luminous glows after the Big Bang, to the formation of solar systems capable of supporting life on planets like Earth, to the evolution of our own Solar System.”

So why does its Director need to have a Top Secret/SCI security clearance, as specified in the job description posted last month on USA Jobs?

Clearly, the secrets of the universe do not lend themselves to, or require, national security classification controls, let alone non-disclosure agreements or polygraph testing.

But in practice, the civilian space program intersects the national security space program at multiple points, and former CIA analyst Allen Thomson suggested that the future Webb Director might need a Top Secret intelligence clearance in order to engage with the National Reconnaissance Office on space technology and operations, for example.

The Webb Space Telescope “will complement and extend the discoveries of the Hubble Space Telescope, with longer wavelength coverage and greatly improved sensitivity,” according to NASA. “The longer wavelengths enable the Webb telescope to look much closer to the beginning of time and to hunt for the unobserved formation of the first galaxies, as well as to look inside dust clouds where stars and planetary systems are forming today.”

In 2000, both houses of Congress passed legislation that would have made any leak of classified information a felony.

The provision, contained in the FY2001 intelligence authorization act, was designed “to ensure the prosecution of all unauthorized disclosures of classified information.” said Sen. Richard Shelby, the primary sponsor of the provision, at the time.

While some unauthorized disclosures of classified information were already prohibited by statute (including the Espionage Act), others have not been specifically outlawed, or else their legal status is uncertain, requiring strenuous efforts by prosecutors to fit a prohibition to the presumed offense. The Shelby provision would have removed all ambiguities and would have simply criminalized all leaks of classified information.

But to the astonishment of nearly everyone, and to the relief of many, President Clinton vetoed the 2001 intelligence authorization bill because of the anti-leak measure.

“Although well intentioned, that provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy,” he wrote in his November 4, 2000 veto message.

But that unexpected outcome almost didn’t come to pass.

Instead of a veto, White House lawyers had prepared draft signing statements for President Clinton in which he would have approved the bill, while expressing some reservations about its potential impact.

The draft signing statements were released by the Clinton Presidential Library last week. The newly disclosed presidential documents were first noted by Josh Gerstein in Politico on July 18.

“I strongly believe… that this new provision should not be applied in a manner that could chill legitimate activity or transform questions of judgment into criminal referrals,” according to the draft signing statement for President Clinton that was ultimately set aside in favor of a veto of the bill.

The worst effects of the anti-leak measure could be avoided by the limited, judicious use of prosecutorial authority, White House lawyers initially suggested.

“It is extraordinarily important, therefore, that the Justice Department use its prosecutorial discretion wisely when apparently unauthorized disclosures are referred to it for possible prosecution under this new provision,” the draft signing statement said.

Prosecutorial discretion often seems to be in short supply, however, and in all likelihood it would not have been an effective bulwark against abuse of the vetoed anti-leak provision, had it passed into law.

An apparent excess of zeal in the prosecution of classified document (mis-)handling was highlighted just last week in the case of Navy contract linguist James F. Hitselberger, who had been charged with multiple felonies in connection with the unlawful retention of national defense information. Earlier this year, Mr. Hitselberger pleaded guilty to a single misdemeanor. Last Thursday, he was sentenced to time already served (in pre-trial custody) and a fine of $250.00.